Citation Nr: 1124620
Decision Date: 06/29/11 Archive Date: 07/06/11
DOCKET NO. 10-10-050 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to service connection for a left ankle disorder.
ATTORNEY FOR THE BOARD
D.J. Drucker, Counsel
INTRODUCTION
The Veteran had active military service from July 1971 to November 1980 and subsequent service in the Reserves during the 1980s.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
The Board notes that, in the January 2010 statement of the case, the RO noted that it had reviewed the Veteran's electronic Virtual VA records that did not reveal any evidence pertinent to his appeal. The Board has also reviewed the contents of the Veteran's Virtual VA records file and found that it only contained copies of a rating decision and letter to the Veteran and did not include any evidence relevant to the claim on appeal.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
The Veteran seeks service connection for a left ankle disorder. In his March 2008 signed statement, he reported that he injured his ankle when a fire extinguisher fell on it during squadron functions and while running in physical training during active service. A June 2004 VA outpatient record indicates that the Veteran had a past medical history of left ankle severe sprain in service in 1976. Other VA medical records include his complaints of left ankle pain.
Service treatment records indicate that, in August 1972, the Veteran was seen with complaints of a possible stress fracture to the left tibia area. In March 1979, he twisted his ankle while playing softball and treatment for the diagnosed sprain included ice and an ace wrap. The Veteran strained his ankle in September 1979. Results of x-rays were negative, and treatment included ice, heat, and an ace wrap. When examined for separation in July 1980, his lower extremities were normal.
Post service, a May 2009 private medical record from Dr. W.S., indicates that the Veteran was seen for chronic left flat foot. A September 2009 private orthopedic record shows that the Veteran was seen for left ankle instability and medial pain and gave a history of problems that began in service when he incurred several left ankle injuries. The diagnosis was left stage II posterior tibialis tendon insufficiency.
In April 2009, a VA examiner diagnosed the Veteran with stage 2 posterior tibialis tendon dysfunction, residuals of ankle sprain, and flexible pes planus secondary to posterior tibialis tendon dysfunction. In the VA examiner's opinion, the Veteran's left ankle condition was less likely than not related to the ankle sprain in military service. According to the VA examiner, the Veteran was treated (in service) for an ankle sprain and now had posterior tibialis tendon dysfunction that was "a different entity". The VA examiner explained that most ankle sprains occurred on the medial side of the ankle (but the Veteran had) a posterior tibialis tendon that was located on the medial side of the ankle that "has probably been something that has developed gradually over time and not related to a specific acute injury". However, there was also a diagnosis of residuals of an ankle sprain, without an explanation of the nature of those residuals.
In an undated signed statement, and in an August 2009 office record, Dr. W.K. indicated that the Veteran was seen in July 2009 and that by history and examination, the Veteran's "left ankle problem" was caused by his injuries in service.
Service treatment records include service examination reports dated through 1985, some performed at the Navy & Marine Corp Reserve Center (N&MCRC) in Washington, D.C., evidently in conjunction with the Veteran's Marine Corps Reserve service. Any additional records from his service in the Reserves should be obtained.
Accordingly, the case is REMANDED for the following action:
1. Contact the National Personnel Records Center, the N&MCRC in Washington, D.C., the USMC Headquarters in Quantico, Virginia, and any other appropriate state and federal agency, and request all treatment records from service in the Reserves since July 1980. If the RO/AMC cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond.
2. After obtaining any necessary authorization from the Veteran, obtain treatment records from W.K., M.D., dated from July 2006 to present. Obtain all medical records regarding the Veteran's treatment at the VA medical center in Gainesville, Florida, for the period from January 2010 to the present and from any additional VA and non-VA medical providers identified by him. If any records are unavailable, a memorandum detailing all efforts to obtain them should be placed in the claims file.
3. Return the claims file to the physician who performed the April 25, 2009 VA joints examination. (If that examiner is unavailable, an opinion should be obtained from another physician, preferably an orthopedist, if available). The claims folder should be made available to the examiner for review in conjunction with the opinion and any examination. If an examination is deemed indicated, that study should be ordered, all indicated tests and studies should be conducted, and all clinical findings reported in detail. A complete history of the claimed disorder should be obtained from the Veteran, including his account of in-service and post-service symptoms. The examiner is requested to respond to the following:
a. The examiner should offer diagnoses as may pertain to the Veteran's left ankle, and an opinion as to whether it is at least as likely as not (a 50 percent or higher degree of probability) that any diagnosed left ankle disorder had its clinical onset during the Veteran's period of service (including the findings noted in the August 1972, and March and September 1979 service treatment record, diagnosing left ankle sprain and strain.), or is otherwise related to such period of service, or whether such a finding is unlikely (less than a 50 percent probability). If the Veteran has no current residuals of the in-service left ankle sprain and strain, the examiner should so state.
b. All opinions and conclusions expressed must be supported by a complete rationale in a report.
4. After completion of the above, the RO/AMC should review the expanded record and determine if the benefit sought can be granted. If the benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
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THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).